The Party of the First Part

1
THE GLORY OF LEGALESE
"Incorporeal" means "without a body." However, when a company is "incorporated" it is given a body.
--CENTRE FOR PLAIN LEGAL LANGUAGE, 1995
At 2:30 A.M. on March 22, 1997, a convicted felon named Anthony Dye was racing his Corvette through the streets of Elkhart, Indiana. The police were in hot pursuit. Dye pulled into his mother's driveway, got out of the car, and made a run for it. When the police caught up with him, Dye took a semiautomatic pistol from his waistband and opened fire. At that critical moment, a valiant police dog named Frei leapt into action, fastened onto Dye's leg, and, as it were, took a bite out of crime. Dye was arrested.
Having been injured in the course of his arrest, Dye did what any red-blooded American would do. He brought a lawsuit--against Frei the police dog. Dye argued that dogs are "persons" who can be sued, at least when they work for the police. Dye fought his way to the second highest court in the land, the United States Court of Appeals, which dismissed his claim.
Dye's theory that a dog is a person is not as far-fetched as you might think. In fact, he wasn't even the first person to sue a police dog. And some very respectable lawyers have argued that the legal definition of person ought to be expanded, at least to include other primates. Laurence Tribe, Harvard's leading constitutional scholar, has maintained for years that chimpanzees should be considered persons under the Constitution.
That the country's best legal minds can be consumed with questions about whether the word "person" includes dogs or chimpanzees tells us a lot about lawyers. But it also tells us something about the language of the law. Nothing in the realm of legalese is quite what it seems.
Consider the fact that Congress once passed legislation declaring that "September 16, 1940 means June 27, 1950." In New Zealand, the law says that a "day" means a period of seventy-two hours, while an Australian statute defines "citrus fruit" to include eggs. To American lawyers, a twenty-year-old document is "ancient," while a seventeen-year-old person is an "infant." At one time or another, the law has defined "dead person" to include nuns, "daughter" to include son, and "cow" to include horse; it has even declared white to be black.
At times, legalese appears to be almost willfully perverse. Standard legal agreements, for example, typically contain some version of the following clause:
The masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses.
In other words, the law sees absolutely no difference between "the boy becomes a man" and "girls will be girls."
Well, then. All this would be of purely academic interest if it weren't for the fact that legal documents are part of the basic infrastructure of life. Isn't it odd that the most important events in our lives require slogging through language that almost nobody understands?
Think about it: getting married or divorced, buying or renting property, investing a nest egg, making a will, serving on a jury, declaring bankruptcy, taking out insurance, borrowing money, getting sued, undergoing surgery--each one of these transactions involves lengthy documents that we are expected to sign, usually without having had sufficient time to read them. Indeed, a person who insistson reading everything that he signs is regarded as a crank of the first order.
And yet, if you ask an educated person, he will often tell you, in self-satisfied tones, that he would never sign a document that he hadn't read. "Wouldn't dream of it," he'll say, perhaps tugging at his bow tie and straightening his horn-rimmed glasses, "I won't agree to anything unless I have time to read it over."
Not to put too fine a point on it, but I don't believe this hypothetical educated person. Does he actually read every car rental contract in full? Does he pore over every agreement sent to him by a credit card company, and the warranty on every product that he buys? Does he read every software licensing agreement before clicking "I agree"? If the answer to all of these is "yes," then I dare say he also lines his hat with aluminum foil.
Consider the case of Justin Noe, a British motorist who was pulled over by the police in 1999 and asked to submit to a Breathalyzer test. He agreed, but on the condition that he first be allowed to consult the Police and Criminal Evidence Act; that is, the very law that explains a citizen's rights when taking Breathalyzer tests. A court later decided that Noe's request was so patently unreasonable as to constitute a refusal to submit to the test, the implication being that he was probably drunk. Clearly, anybody who asks to read a statute must be intoxicated.
When nonlawyers do manage to read legal documents, they typically end up more confused than they were before they started. Any language in which libel can mean either a disparaging remark or a lawsuit against a ship is obviously a disaster waiting to happen. In legalese, when you executean agreement, you bring it into existence; but when you execute a person, you do just the opposite. A layman is often surprised to learn that only land and buildings count as real property, as though things like cars and furniture were somehow unreal property. Actually, the "real" in real property comes from the French word for "royal," because all land used to be held by the king. There, doesn't that make you feel better?
The double and triple meanings of legal language account for many of the odd newspaper headlines that make the rounds on the Internet--"Man struck by lightning faces battery charge," for example. Or "Juvenile court to try shooting defendant." Now there's an idea.
MIND THE GAP
In 2001, the Economist magazine reported on a "worrying gap" between the language of the public and that of the legal profession. That gap grows wider every day, as legal English staunchly resists the changes rippling through everyday English. On the bright side, this means that the law is less susceptible to silly fads--lawyers don't write things like "gr8--cu 18r!"--but it also means that the law is less and less accessible to each new generation.
Legalese could even evolve into a foreign language in the not-too-distant future. Already, many linguists refer to the language of law as a "sublanguage," meaning that it's more than just a collection of jargon, but also has its own specialized rules of grammar and syntax. How many ordinary English speakers understand the common mortgage term that asks you to promise that you are "lawfully seisedof the estate to be conveyed"? Or the promissory note that makes you waive your right to "interpose any counterclaim"? Sublanguage indeed.
The fact that legalese is drifting away from everyday language is especially sad since the story of legal English is, in many ways, the story of the English language itself. There are statutes recorded in English going back to the Laws of Ine, the Anglo-Saxon king of Wessex, in the late seventh century A.D. Ine's laws were admirably straightforward. For example:
If anyone steals so that his wife and children do not know, let him pay sixty shillings fine. If he should steal with the knowledge of his family, then they should all go into slavery.
What could be clearer? For centuries, legal language played a decisive role in the development of English. The very first dictionary printed in England (in 1523) was a law dictionary written by John Rastell, a true Renaissance man who at various times was a playwright, theatrical producer, printer, translator, failed explorer, and, of course, lawyer. The first English-language dictionary to include word etymologies was also a law dictionary, Thomas Blount's 1670 Nomo-Lexikon.
In 1607, lawyer John Cowell came out with a massive dictionary called The Interpreter. The book was intended as a legal glossary, but such was Cowell's enthusiasm for words that he could not help veering off topic, defining such nonlegal words as cinnamon, condor, fodder, and pier, not to mention polein (the pointy tip of a boot) and senie (a medicinal herb).
One of the great pleasures of perusing old law dictionaries is the glimpse we get of a vanished society. In Cowell's book we see the sturdy shyreeve, the "shire reeve," a local constable, whose title would eventually morph into sheriff. There are markets and staples , places where merchants could bring their goods--hence our use of the word "staple" to mean a basic commodity. Best of all, there is the ale-tastor: "an officer sworn to look to ... the goodness of bread and ale or beer." A tough job, but somebody had to do it.
One also can't help but admire Cowell's use of certain obsolete terms that are long overdue for a revival. The Anglo-Saxon terms backberond (a thief caught carrying pilfered goods on his back) and miskenning (misspeaking in court) would both prove highly useful today. The dulcet word hoghenhine, which denotes a houseguest who stays more than two nights, after which the host must either evict him or become legally responsible for him, would come in handy around the holidays. And how impoverished is our language--if not our economy--without a coin known as a Gallihalpens?
Cowell was a contemporary of Shakespeare, who was himself so addicted to legal jargon that many scholars believe that the dramatist practiced, or at least studied, law in his youth. Tucked away in the Bard's many plays and sonnets are dozens of legal terms, including pleading, plaintiff, defendant, appellant, and jury, to name just a few. Shakespeare's Sonnet 46, for example, depicts an imaginary lawsuit between the author's eye and his heart for possession of a beloved woman. Here we get both plead and plea, defendant, title, quest (short for inquest, or jury), impaneled, and verdict. The sonnet concludes with the jurygiving each party a moiety (a half interest): namely, the eye gets the beloved's outward beauty while the heart gets her inner love.
Legal English, like English itself, emerged from a melting pot of languages, including Anglo-Saxon, Norman French, and Church Latin. The word law is Norse in origin, a legacy of the Viking raids that led to permanent settlements in northern England. The word originally meant "that which is laid down," so don't bother laying down the law--it already is.
As one seventeenth-century observer noted, the laws of England "are as mixt as our language, compounded of British, Roman, Saxon, Danish [and] Norman customs. And as our language is so much the richer, so the laws are the more complete."
CROSSING THE POND
In the early United States, the link between law and language was as strong as it had been in England. The patriarch of all American dictionaries, Noah Webster (1758-1843), was a lawyer, although not particularly successful at that profession. His great contribution lay in the realization that America needed to declare its linguistic independence--especially when it came to legal language. In 1800 the leading British dictionary defined escheat (forfeiture of property to the state) as follows:
Any lands, or other profits, that fall to a lord within his manor by forfeiture, or the death of his tenant, dying without heir general or especial.
Lord? Manor? That would hardly do for a republic. Webster stripped away the aristocratic verbiage to give us a democratic escheat: "The falling of lands to the owner or to the state by forfeiture or failure of heirs."
Webster cleaned up references to the Crown from other legal terms, approved such innovations as using deed as a verb, and introduced crucial American usages like constitutionality, a word first attributed to Alexander Hamilton. In all, Webster devoted more than twenty-five years to his dictionary, including two years of research in England. It remains a towering work of scholarship.
It would be nice to think of Webster as a kind, scholarly man in a fuzzy cardigan. Unfortunately, history remembers him as a "severe, correct, humorless, religious, temperate man who was not easy to like, even by other severe, religious, temperate, humorless people." It was not enough for Webster to produce a dictionary--the ex-lawyer wanted his definitions to have the backing of law. He pressed then--Chief Justice John Marshall to adopt his dictionary as the official dictionary of the Supreme Court. Marshall declined.
America soon had its own purpose-built law dictionaries, no thanks to Webster. The first, published in 1839, was the product of the French-born John Bouvier. Scores of competing dictionaries followed, including the most famous American law lexicon, Black's Law Dictionary, first published in 1891 and still in print today.
Nothing better illustrates American law's obsession with language than a series of books with the unassuming name Words and Phrases. Each page of Words and Phrases contains upward of twenty brief summaries of court decisionson the legal meaning of various, well, words and phrases. Each book in the series has about 800 pages, and there are 118 books. The entry for shall--not an especially ambiguous word, one might think--runs to 93 pages, citing more than twelve hundred cases.
TODAY'S LEGALESE
By the 1960s, the late Professor David Mellinkoff, a renowned authority on legal language, could state without exaggeration that "no profession of words has a longer history of practical effort devoted to refining language."
The results of all that refinement have been decidedly mixed. Remember the elegant law of King Ine? Well, thirteen hundred years later, British lawmakers have been reduced to writing statutes that say: "The hours of non-hours work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period."
But that's nothing. When British regulators turned their attention to the subject of nuts, they produced a sentence of almost sublime absurdity:
In the Nuts (unground)(other than Ground Nuts) Order the expression "nuts" shall have reference to such nuts, other than ground nuts, as would but for this amending Order not qualify as nuts (unground) (other than ground nuts) by reason of their being nuts (unground).
Meanwhile, in sunny Australia, a recent immigration law declares that "prescribed decisions of the Secretary [maybe] reviewed by prescribed review officers on application, as prescribed, by prescribed persons." Perhaps the person who wrote that sentence needs a prescription.
The United States fares no better at writing laws. Taking a random page from the Code of Federal Regulations, one finds this bewildering pronouncement from the IRS:
The fact that it may be difficult or impossible to provide a benefit, right, or feature described in paragraph (b)(3)(i) of this section under a plan of a different type than the plan or plans under which it is provided is one of the factors taken into account in determining whether the plan satisfies the effective availability requirement of §1.401(a)(4)-4 (c)(1).
To which one can only say: Oh dear, is that the time?
We instinctively know legalese when we see it, but defining it is another matter. Certain traits of legal language seem obvious once you know them. For example, once you recognize that the law prefers nouns over verbs, you start to understand why a lawyer will always bring a lawsuit instead of suing, or make an application instead of applying. The process of turning verbs into nouns--linguists call it nominalization--is a useful tool for making things sound universal, for example, "cutting down trees is prohibited" rather than "you may not cut down trees." It also allows lawyers to fudge questions of personal responsibility: Why say "my client injured Mr. Smith on Tuesday" when you can say "Mr. Smith received an injury on Tuesday?"
The law's long-standing love affair with run-on sentences becomes less mysterious when one knows that lawclerks were traditionally paid by the page. Originally the clerks simply inflated their documents by using ridiculously large margins and script. When judges got wise and started to impose rules about margin width, the clerks resorted to repetition and wordiness to puff up their fees. The legacy of the medieval scribes continues today: With lawyers paid by the hour, there is still little incentive to keep things short.
It doesn't take an expert to show that legal documents are difficult to read, but there are experts to confirm it just the same. One objective measure of readability is the Flesch Reading Ease Test, developed by Dr. Rudolph Flesch, author of Why Johnny Can't Read. The Flesch test is graded on a scale of 0 to 100, with 0 being very unclear and 100 being crystal clear. Somehow, the Social Security Act received a negative 130 on the Flesch Test, while the Ethics in Government Act weighed in at minus 219. Congress, you see, may have a willing spirit, but its Flesch is weak.
PLAIN VS. PRECISION: A FIGHT TO THE DEATH
What is to be done with the language of the law? There are two opposing schools of thought on this question: "Precision" and "Plain English." And let's just say that if you belong to one of these groups, you don't want to wander onto the other side's turf after dark. Accidents do happen.
The Precision camp holds that the complexity of legal language flows naturally from the need of lawyers to be super precise. According to this theory, there is nothing to be done about legalese--it's fine just the way it is. The multiple subordinate clauses and technical jargon found inlegal documents are there to describe highly complex relationships and to stamp out ambiguity.
The Precision School probably reached its zenith a few decades ago when, for example, one legal scholar exultantly praised legal textbooks as ranking "in the exactitude of their language with the classic studies in physics and natural science."
An even more arresting statement of the Precision school came from Sir Ernest Gowers, a British civil servant who proclaimed legal language to be "obscure in order that it may be unambiguous." In effect, the law beats me because it loves me. As recently as 1994, a law review article asked the question, "Should the main goal of statutory drafting be accuracy or clarity?" which assumes that making statutes clearer will make them less "accurate."
To all this talk of precision, Plain English flips an unceremonious bird. There is no structural reason, according to Plain English advocates, why the law cannot be written in simple, clear language.
Plain English embraces a number of different concepts, including using shorter sentences, active voice, and dropping surplus verbiage such as hereafter, hereinbefore, thereto, and words of that ilk. The underlying philosophy of the Plain English school is that ordinary citizens ought to be able to understand the laws they live under and the contracts they sign.
Plain English could just as easily be described as a crusade rather than a school of thought. This is particularly so in Britain, where one organization, the Plain English Campaign, has had a profound effect on the language of law and bureaucracy. Founded in the 1970s by a largely self-educated woman in Liverpool named Chrissie Maher,the campaign has had such notable successes as the banishment of Latin from England's civil courts.
A moment's thought will tell you that the Plain English school has the better of the argument with the Precision School. The sheer number of lawsuits arising from ambiguities in contracts and statutes is enough to suggest that legal language has not achieved its desired "precision" despite a millennium of effort. And the need for technical terms is almost certainly exaggerated. One law professor estimates that only 2 percent of the average legal document is actually devoted to conveying legal concepts. The other 98 percent needs our help.
But don't count out the Precision School just yet. In 1994, a Michigan lawyer denounced the "Plain English Jihad" for causing legal English to lose its "flavor and precision." More recently, the Scottish lawyer and academic Alfred Phillips bitterly attacked Plain English in his book Lawyers' Language (2003). For starters, Phillips goes to great pains to explain that "plain language" is a misnomer and should really be referred to as "ordinary language"--exactly the kind of niggling technicality that makes people hate lawyers.
Professor Phillips then tells us that he considers "ordinary language" to be just as dangerous as "plain language"--so why did he make such a fuss about the distinction in the first place? Heaven knows, but he offers the dire prediction that "were ordinary language generally to replace legal language in legal texts, any (dubious) gains in intelligibility would be wiped out by the loss of precision." He concludes that efforts to encourage plain English "are misguided and their failure is inevitable." After which, presumably, he unleashes his evil-professor laugh.
And now things start to get nasty, for there is a radical wing of the Plain English movement that regards people like Phillips as toadies of a vast legal-industrial conspiracy. The conspiracy theory dates back to the nineteenth-century philosopher Jeremy Bentham, who said that "the easiest way to create a monopoly is to invent a language and procedure which will be unintelligible to the layman ... . In many ways it is ... the art of the ancient and noble profession of the law."
The argument has been restated many times since Bentham. The contemporary British academic Peter Goodrich, for example, acidly argues that lawyers use "archaic" terminology in order to prop up "an economic elite and the discriminatory values that serve such an elite."
Intriguingly, there is some historical evidence to support the conspiracy theory. As we shall see in later chapters, English judges and lawyers continued to use French for many centuries after the Norman Conquest; almost certainly this had something to do with keeping tight control on the supply of legal services. In the sixteenth century, England's Attorney General, Sir Edward Coke, defended the use of French as a means of protecting the public, "lest the unlearned by bare reading ... might suck out errors, and trusting in conceit, might endamage themselves." A similar argument was advanced by the legal reporter William Style, who in 1658 asserted that disseminating laws in English had led to "unquiet spirits" among the masses.
The idea of using legal language as a badge of exclusivity is not unique to English. Legend has it that the ancient Celtic lawyers of Britain and Ireland communicated in a language that was already archaic in Roman times. The ancientEgyptians developed a special form of hieroglyphics--demotic script--specifically for law and government. Demotic has been called the "original legalese."
In Japan, there are two native writing systems, called katakana and hiragana, but historically most statutes are not written in either. Instead, Japanese laws were written in Chinese. It was only in this century that the Tokyo authorities even began translating some of the more important codes into Japanese. The situation in Greece is analogous. There, modern Greek (Demotiki) has all but displaced the ancient-style "pure" Greek (Katharevousa), which was for years the preferred language of scholarly discourse. As recently as 1995, Greek law was said to remain a "bastion" of the aristocratic Katharevousa.
Whether tidbits such as these add up to a conspiracy among lawyers is merely of historical interest. It is a little hard to believe that there is an active conspiracy among lawyers today. But the main debate--between the advocates of Precision and Plain English--is vitally important.
At stake is the future of "legal literacy," a measure of citizens' ability to read legal documents and understand the substance of legal proceedings. In 1996, Canadian researchers, using data from an international adult literacy survey, estimated that fewer than 25 percent of Canadians possessed legal literacy. Using the same methodology, the figure for the United States would be 18 to 21 percent.
The decline in legal literacy affects everyone's ability to know his or her rights, but it has its greatest impact on low-wage earners. In March 2005, the New York Times reported that fewer than 5 percent of the twenty million potential applicants were expected to apply for the government's new prescription drug benefit, because the forms were toocomplicated for people to understand. In Britain, the Plain English Campaign estimates that billions of pounds of government benefits go unclaimed for the same reason.
The notion of informed consent--that is, a patient's approval of a medical procedure--has also been gutted by low legal literacy. One study estimates that only 3 to 20 percent of adults in the United States can actually give informed consent, largely because the required consent forms are chock-full of legalese. There are only two ways to boost legal literacy: Either make legal language more intelligible, or send everyone to law school.
Just how does legal language differ from everyday language, and how did it get that way? What are some of the plain English alternatives to the most common forms of legalese? And what, exactly, is a tort? These are some of the questions I aim to answer in this book. But first, you must read the fine print.

COPYRIGHT © 2007 BY ADAM FREEDMAN